EVV18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 598
•10 JULY 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EVV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 598
File number(s): SYG 2644 of 2018 Judgment of: JUDGE VASTA Date of judgment: 10 JULY 2024 Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436
SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 28 June 2024 Place: Brisbane Counsel for the Applicant: Ms Poukchanski Solicitor for the Applicant: Baker & McKenzie Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: HWL Ebsworth Lawyers Solicitor for the Second Respondent: submitting appearance, save as to costs
Table of Corrections Cover page To correct the name of Counsel for the applicant to Ms Poukchanski Cover page Amend the submitting appearance from the Applicant to the Second Respondent ORDERS
SYG 2644 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EVV18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
10 JULY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS”.
2.The application filed on 19 September 2018 as amended on 25 July 2019 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 24 August 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, EVV18, a protection visa. On 19 September 2018, the Applicant asked this Court to review that decision.
The matter was mentioned by the Registrar on 11 October 2018, where orders for filing were made and the matter was stood over for call over by a Registrar on 22 October 2019. On 23 July 2019, amendments were made, in Chambers, by Her Honour Judge Baird, to the filing dates. On 21 October 2019, the matter was stood over for call over before a Registrar, or for final hearing before Judge Baird, on a date and place to be advised administratively and not before 1 September 2020.
The matter ended up being subsumed into the national migration docket. The matter stayed there until 30 April 2024 when it was assigned to be heard by me at 2:15 PM on 25 June 2024. Because of other matters, the matter was relisted to be heard at 11 AM on 28 June 2024.
I heard the matter on that day, but I noted that it had taken three months shy of six years for the Court to finally hear the application. This is a shocking delay, and, on behalf of the Court, I apologise to EVV18 for the delay. Notwithstanding that I had to reserve my decision on that day, I have striven to deliver this judgement as soon as possible.
Background
The Applicant is a citizen of Iran. He claimed that when he was wrestling at the state level, he was mistreated and punished by members of the Basij and the Sepah. He said that the manager of his team asked him to participate in the Evin Prison Wrestling team. When the Applicant refused, he said that the manager threatened him and sent men to his home to threaten him further.
The Applicant said that he left Iran and came to Australia. He said that, after arriving in Australia, he wanted to speak out and show his objections to the policies of the government of Iran. He said that he attended two protests relating to the treatment of political prisoners in Iran.
The Applicant said he was not comfortable with the religion which was forced on him since birth. He said he decided to come to Australia to have a better opportunity to freely choose his religious belief. He said he was introduced to Christianity by a friend and attended St John’s church in Parramatta. He said that the lack of freedom in Islam on one hand, and the gratitude of Christians on the other hand, significantly attracted him to Christianity and led to his decision to convert to a new faith.
The Applicant said that from late 2014, he attended services St John’s church and from mid-2016 decided to be a member of the Liberty Baptist Church in North Rocks. The Applicant said he was baptised and officially became a Christian on 4 December 2016. He said that he continues to attend Sunday services and Bible study at liberty Baptist Church.
The Applicant claims that, if he returns to Iran, he will be arrested, interrogated, tortured, and may be executed. This will be because he has converted to Christianity.
The IAA decision
The IAA looked closely at the claims of the Applicant. Because the scope of this review is very narrow, I have no need to give a recitation of the reasons of the IAA. Suffice it to say, the IAA assessed whether the Applicant would be considered a Christian upon return to Iran. The IAA found that the Applicant had undertaken baptism and church attendance in Australia solely in furtherance of his protection claims.
The IAA said that there was no credible evidence to indicate that the Applicant would participate, or have any interest in, participating in any activities in which he would be perceived to be Christian on return to Iran.
There were other aspects to the claim that caused the IAA to affirm the decision of the delegate, however, this particular finding was pivotal to the decision of the IAA. The reasoning of the IAA is neatly contained in paragraphs 22, 23, 24 and 25 of the IAA decision. I have reproduced those paragraphs below:
22.The delegate questioned the applicant in some detail on his knowledge of Christianity and what Christianity meant to him. The delegate concluded that his answers were not indicative of a person who is genuine or seriously committed to their religion. In the submissions to the IAA Ms Jafari contends that the applicant suffers from poor memory and concentration due to his psychological conditions as well as his current anti-depressant medication. This is supported by Dr Pishyar's report and I accept he suffers from poor memory and concentration. She further contended that "the delegate used a harsh tone in a superior way when questioning my client" which caused him added confusion. Even taking these factors into account, it did appear that the applicant's knowledge of any Christian concepts or core beliefs was very shallow. In terms of the applicant's beliefs, these appear from his evidence to be that he feels comforted in a church, that Christianity is about love, fellowship, friendship and believing in Jesus Christ. The applicant stated that he was cleansed of his sins but was unable to explain how this occurred or what he meant by the statement. He stated that he prayed and when asked why he did so he replied "because it makes us comforted".
23.I accept that the applicant underwent baptism on 4 December 2016 and subsequently has attended, and continues to attend, the Liberty Baptist Church for services and bible studies. I do not accept that this is indicative of a genuine conversion to Christianity. I conclude that his baptism, his subsequent attendance at church and completion of various subjects in the Liberty Baptist Church Certificates were solely for the purpose of furthering his claims for protection.
24.The delegate asked the applicant how the Iranian authorities would know that he had converted to Christianity. The applicant responded that they would know from his Facebook page, he posts things about Christianity on it. In her submissions to the IAA Ms Jafari contended that he did this from June 2016 onward. I note that the applicant was not attending church regularly at that time. The delegate did not accept the applicant's claim to have posted Christian material and Ms Jafari asserts that this was "incorrect as it could be checked in my client's Facebook account". It is not the delegate's role, nor is it that of the IAA, to hunt for evidence which supports a claim. The applicant provided no evidence of his Facebook page to the delegate nor, in the significant amounts of new information provided to the IAA, is there any indication of his on-line activities. Based on the available evidence, Ido not accept that the applicant posts Christian material on-line. Pastor Keith has claimed that the applicant "has told his family and friends in Iran that he is a Christian. Some of them are angry with him about this". The applicant has at no point made such a claim and I do not accept it.
25.At the end of the PV interview the applicant added that it is his duty to evangelize and he would not be able to hide this in his home country. Due to my conclusion that he is not a genuine convert to Christianity I do not accept this claim. I am not satisfied that any one in Iran would be aware of the applicant's baptism or attendance at church or bible studies in Australia. I do not accept that the applicant would declare himself a Christian or would seek to practise or identify as a Christian on return to Iran. I do not accept that he would seek to convert others to Christianity. I do not consider that this would be because he would be afraid to do so because of a fear of persecution, but because he does not have a genuine and ongoing commitment to the Christian faith. I do not accept that the applicant would be perceived to be a Christian in Iran because he has attended church in Australia or been baptised.
This review
There are two grounds of review which were contained in the amended originating application which was filed on 25 July 2019. The grounds are reproduced below:
1.The Second Respondent erred in law, particularly at paragraphs [22]-[25] of its reasons, by finding that the Applicant had purported to convert to Christianity solely for the purpose of furthering his claim for protection, in that:
1.1The Second Respondent took into account an irrelevant consideration, namely its subjective assessment of the Applicant's knowledge of Christian concepts and beliefs;
1.2Further or in the alternative the Second Respondent's finding was irrational, in that:
i)The deficiencies in the Applicant's knowledge of Christianity identified by the Second Respondent did not provide a logical basis on which to find that his baptism and regular attendance at church were not sincere or genuine; and
ii)The Second Respondent's reliance on alleged deficiencies in the Applicant's ability to articulate Christian concepts and beliefs was unsafe and irrational, in circumstances where the Second Respondent accepted that the Applicant suffers from significant mental illness which severely affects his functioning, causing poor memory and concentration.
2.In the premises, the Second Respondent erred in law, particularly at paragraphs [31]-[33] of its reasons, by applying s 5J(6) of the Migration Act 1958 and disregarding the Applicant's claim to fear persecution m Iran due to his conversion to Christianity.
Because the two grounds are intrinsically linked, whether the IAA committed a jurisdictional error in the manner in which the IAA decided that the Applicant had purported to convert to Christianity solely for the purpose of furthering his claim for protection, will decide both grounds. This was the way in which the parties conducted the hearing before me.
Paragraph 22
Paragraph 22 of the reasons of the IAA, is the crucial paragraph. In that paragraph the IAA has said that “it did appear that the Applicant’s knowledge of any Christian concepts or core beliefs was very shallow”.
The IAA also said that, in terms of the Applicant’s beliefs, these appear from his evidence to be that he feels comforted in the church, that Christianity is about love, fellowship, friendship and believing in Jesus Christ.
The IAA noted that the Applicant stated that he was cleansed of his sins but was unable to explain how this occurred or what he meant by the statement.
The IAA noted that the Applicant stated that he prayed and when asked why he did so, the Applicant replied, “because it makes us comforted”.
Transcript of the interview with the delegate
The factual assertions made by the IAA are based upon what was said by the Applicant when he was interviewed by the delegate. In the affidavit of Matthew Coleman Salgo, filed on 22 August 2019, a transcript of the interview with the delegate is annexed. The part of the interview, from which the factual assertions in paragraph 22 are based, is found at lines 248 to 332. I have reproduced that portion of the transcript below:
248.DHA: The first time you went to Liberty Baptist church what did you think about…Christianity?
249.[REDACTED] I felt so great as I was told I was cleansed of my sins. And I had faith in Jesus Christ and it’s really great for me.
250.DHA: How were you cleansed of your sins on the first time you went to church?
251.[REDACTED] My friend told me, because they evangelised me, talking about Christianity. It is really great, I was really effected, influenced.
252.DHA: On the firs time you attended though, you were saying were cleansed. How were you cleansed of your sins?
253. [REDACTED] By reading bible, the Holy book.
254. DHA: Is that your understanding of how you are cleansed?
255.[REDACTED] No you should read the bible regularly, you should follow Christ and little by little you are filled with it.
256.DHA: So just getting back, so the first time you went you felt…can you give me some more information about the way you felt, what you thought about Christianity at the time?
257.[REDACTED] The first time that I went there it was the Sunday morning that I went to the Carlingford church. We started with praying and the first time we started with praying and we sang the hymns. It was a really great environment, they served a meal and I met other people, other friends, [Omitted] was one of them that I was introduced to by [Omitted]. I told him that I was new in that church and he talked to me about the Holy book, told me that I should do this and that and in Parramatta there were bible study classes as well, held on the same day in the afternoons that I attended and that was how that I became gradually more interested more, more and more.
258.DHA: So you are saying in Parramatta there were bible studies classes you attended?
259.[REDACTED] Yes, after the morning service we went to that place so from 12:30 r 1 o’clock til 4 o’clock they taught bible, bible lessons.
260.DHA: So you are saying at Parramatta?
261.[REDACTED] No, no, no. Opposite it, opposite this place, there is a big place that’s close to…it might be the sports club, I don’t know exactly the name of that place, but it’s a big space opposite it.
262.Interpreter: May the interpreter enquire please?
263.DHA: Yes.
264.Interpreter: Opposite what?
265.[REDACTED] Opposite that place there was a space, a big space that the classes were held.
266.DHA: Okay, so you are saying with Liberty Baptists bible studies classes were held in Parramatta, is that right?
267.[REDACTED] The bible studies.
268.DHA: Okay, and you are saying you went to those bible studies and that’s how you gradually became interested in it, is that right?
269.[REDACTED] Yes, went to the bible study classes and yeah, I got interested.
270.DHA: So after going to a number of bible studies classes, you felt
271.[REDACTED] Yes.
272.DHA: So after going to a number of bible studies classes you felt what, that you needed to be baptised? Tell me about that.
273.[REDACTED] Yes, after some of the sessions, the Bible study classes, listening about Christianity, about forgiveness, Jesus Christ, love and fellowship, I became so interested and that’s why I was baptised.
274.DHA: How many Bible studies classes do you think you went to?
275.[REDACTED] I attended regularly, 4 to 5 sessions was before that.
276.DHA: I mean before you got baptised?
277.[REDACTED] I remember that I’d gone regularly, 4 to 5 sessions was before that.
278.DHA: Sorry, you went to 4 to 5 sessions?
279.[REDACTED] Yes, I went.
280. DHA: Do you feel that 4 to 5 sessions is a gradual conversion Christianity?
281.[REDACTED] Not the conversion, but I remember that I went there regularly, attend regularly and that I was baptised, they baptised me, I was baptised and after that from 2016 I’ve been attending regularly.
282.DHA: But you said that you went to bible studies classes and gradually you became interested and you decided to get baptised. And then you said you’d been to 4 to 5 bible classes before you were baptised and I asked’ do you consider 4 to 5 bible study classes a gradual conversion?
283.[REDACTED] Gradually, gradually attending the sessions, going to church, meeting people, making friends and I continued, I kept going and in the end I joined Christianity.
284.DHA: Is that in your letter of support? It’s just that your letter of support says the first time you went to…the first time they have you going to the church is the 27th of November 2016.
285.[REDACTED] Yes.
286.DHA: Had you been before that?
287.Interpreter: Pardon?
288.DHA: Had you been to the church before that?
289.[REDACTED] Before that, before that with Mr [Omitted], who I met in the other church I went to.
290.DHA: Had you been to their bible studies before the 27th of November 2016?
291.[REDACTED] Before that, no.
292.DHA: So you…it’s only about a week from you went to the first bible study class to being baptised?
293.[REDACTED] I may have not been able to remember exactly or may have not been able to recall the exact date. Probably that was an error.
294.DHA: It’s not about the dates it’s about the fact that you are saying that you were …the reason you converted was the interest you gained through going to bible study classes and that this happened gradually.
295.[REDACTED] Yes.
296.DHA: Is that true?
297.[REDACTED] Would you please repeat that again?
298.DHA: It’s not the dates that is the issue, you said that you gradually became interested in Christianity form attending these bible studies classes at Liberty Baptist Church. The first bible study class you attend was on 27th of November 2016.
299.[REDACTED] Yes, before that date written on that letter I had been to study classes in that church with my friend [Omitted], yes sometimes, some of those sessions I’d attended before that date…before being baptised.
300.DHA: So you are saying that date on your letter of support is wrong?
301.[REDACTED] No, that’s correct.
302.DHA: So had you been to bible study classes before 27th of November 2016?
303.[REDACTED] With [Omitted] I went to the classes, sat in the classes with him, in bible study classes with him, sitting with him.
304.Interpreter [Omitted]?
305.[REDACTED] I mean Mr [omitted], his family.
306.DHA: Okay, what is the most important part of Christianity to you?
307.[REDACTED] Faith in Jesus Christ.
308.DHA: Why?
309. [REDACTED] Why? Because Jesus Christ taught us about forgiveness, about humanity, about love, about kindness, telling us that we shouldn’t keep other’s rights, we should love one another, whatever we like for ourselves, like for our neighbour.
310.DHA: is there any bible story teachings, anything at all that you know that reflects that view?
311.Interpreter: Sorry would you please repeat that again?
312.DHA: Is there any psalm, bible…section of the bible or any teach…Christian teaching that reflects that view?
313.[REDACTED] Yes there are.
314.DHA: Well, what’s that?
315.[REDACTED] One of them is the verse of the John. Should I say that?
316.DHA: Just tell me about it?
317.[REDACTED] Yes John 1:1 says that worship you god, my god whose presence who is there heavenly god, Jesus Christ.
318.DHA: How does that reflect you…what you just said is the most important part of Christianity to you?
319.[REDACTED] Because it teaches us to forgive to be …to forgive others, forgive-ful. It teaches us humanity, helping on another. Not telling lies, respecting our neighbours, showing them love, helping one another, evangelising.
320.AZ: Sorry can I interrupt, I think he didn’t understand that the explanation should reflect what he said in the previous question, so that’s why he didn’t answer correctly.
321.DHA: Yeah, yeah, I’ll just say it again. So, I asked you “what’s the most important part of Christianity to you?” and then you gave me an explanation and I said “what’s a teaching that reflects that?” You gave me something from John and then I asked you “how does that section you gave me from John reflect the most important part of Christianity to you?”
322.[REDACTED] Because Jesus says that, Jesus says that “I am your god, I am the son of god, I’m god the father, actually. I’m messiah, I’m the Christ, I am the messiah and I have come to take away your sins from the earth, to love you, to show love to you and to get you out of sin, set you free.”
323.DHA: Alright. Do you pray?
324.[REDACTED] Yes.
325.DHA: Why?
326.[REDACTED] Because it makes us comforted and because Jesus Christ helps us and he gives us our daily bread and we won’t get into any trouble, nothing bad will happen to use by praying, and that’s why that we pray.
327.DHA: Is there anything that Liberty Baptist teaches you to say in your prayers?
328.[REDACTED] Yes.
329.DHA: What’s that?
330.[REDACTED] Yes, verses of the Lord’s Prayer.
331.DHA: And why do they get you to say that?
332.[REDACTED] Because it helps us to be away from the devil one and Jesus Christ helps us and we help one another and no evil thing, no evil kind of thing would be in us if we read this prayer, because Jesus Christ is all love.
The present hearing
It has been submitted by the Applicant that the IAA subjectively assessed the Applicant’s knowledge of Christian concepts and beliefs. The Applicant submitted that this was impermissible. The Applicant is further submitted that, whatever deficiencies there were in the Applicant’s knowledge of Christianity identified by the IAA, were not such as to provide a logical basis upon which to find that the Applicant was not a genuine convert to Christianity. This was particularly so considering the Applicant’s mental illness.
The Minister has taken issue with those submissions. The Minister claims that the IAA has made findings of fact which were open for the IAA to make. Therefore, there is no jurisdictional error.
Previous Authorities
In SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129, the Full Court was dealing with an applicant from China who stated that he was a follower of the Falun Gong religion. In that case, the AAT had concluded that the particular applicant before them was not a genuine Falun Gong practitioner and has engaged in Falun Gong activities in Australia solely to strengthen his refugee claim.
The Full Court said that the second ground of appeal in that matter was said to go to: “the apparent imposition by the AAT of a standard that it imposed as to the requisite level of knowledge of Falun Gong doctrine that might attract Falun Gong status”. The argument was that there was no evidence before the AAT to indicate any “cut off” point for an acceptable minimum level of knowledge for a Falun Gong practitioner.
The Full Court said that:
…the short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement, or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim.
The Full Court also noted that the ground of appeal was formulated upon an assumption that the AAT held that “every believer or follower of the Falun Gong religion must have certain knowledge or provide certain answers concerning aspects of that religion”. The Full Court said that this was not a proposition enunciated or implied in the reasons of the Tribunal.
In Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108, the Full Court was also dealing with an applicant from China who claimed to be a practitioner of Falun Gong. The AAT did not accept the claim saying that “they did not believe that the applicant is a Falun Gong practitioner; his inability to answer correctly my questions about basic elements of Falun Gong belief causes me to discount any possibility that he has practiced Falun Gong in China as he claims”.
Kenny and Rares JJ noted that there was no reference in the Tribunal’s reasons as to any material against which the applicant’s knowledge of Falun Gong could rationally be evaluated. All that was said by the Tribunal was “at hearing, I first asked the applicant a series of questions about Falun Gong. He answered none of them correctly”.
At paragraphs 37 -39 of the decision, Kenny J said
37.These authorities indicate that the question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between:(a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
38Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
39If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.
Her Honour concluded that:
… the conclusion of the AAT, that the applicant’s answers were not correct, was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision maker could have evaluated the answers of the applicant; no such material can be found in the record; and no other logical basis justifies the Tribunal’s finding.
In MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436, the Full Court was dealing with an applicant from Iran who claimed that he was no longer a follower of Islam and have become agnostic. At paragraph 47, the Full Court said
47.The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge: see SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]-[32]; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [37] per Kenny J; SZOCT at [41], [50] per Buchanan J; SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495 at [34]-[36] per Bromberg J.
I do not find any inconsistency in the reasoning of those three Full Courts. On a factual level, the reason that SZLSP (Supra) was successful, in establishing jurisdictional error, was that the AAT had expressed the answers given by the applicant (in relation to his religion) as being “right” or “wrong”. Whether questions as to religion can ever be “right” or “wrong” is a road upon which this Court need not traverse. However, as a matter of common sense, an answer can only be described as being “right or wrong” when compared to an authoritative standard. In SZLSP (Supra), this authoritative standard was never identified.
In SBCC (Supra), the AAT made an objective assessment as to the knowledge and belief as to the core principles of the particular applicant and used that assessment as the basis for a conclusion as to whether the applicant was a genuine adherent to the religion or whether that claim was being used to strengthen the overall claim for protection.
The standard for such assessments, seems to me, to be the one adopted by the Full Court in MZZJO (Supra).
Particular aspects of the transcript
As the transcript illustrates, the applicant was asked what he thought about Christianity on the first time he went to Liberty Baptist church, and he replied that “I felt so great as I was told I was cleansed of my sins”. The delegate asked how he was cleansed of his sins and the applicant replied “my friend told me, because they evangelise me, talking about Christianity. It is really great, I was really affected, influenced”.
The delegate asked again “on the first time you attended though, you were saying you were cleansed. How are you cleansed of your sins?” The applicant replied, “by reading Bible, the holy book”. The delegate asked, “is that your understanding of how you are cleansed?” The applicant replied, “No. You should read the Bible regularly, you should follow Christ and little by little you are filled with it”.
Later, the delegate asked the applicant to tell him how the “section from John” reflected “the most important part of Christianity to you” and the applicant replied, “because Jesus says that, Jesus says that “I am your God, I am the son of God, I’m God the father, actually. I’m Messiah, I am the Christ, I am the Messiah and I have come to take away your sins from the earth, to love you, to show love to you and to get you out of sin, sets you free”.
Those passages are the only references that the applicant made to the “cleansing of his sins”.
The whole of the passages, that were reproduced earlier in these Reasons, are all that the applicant had said about his knowledge of Christian concepts or core beliefs of Christianity.
What has the IAA done in the present matter?
The difference between the previous authorities and the present matter is that, in the present matter, the IAA was not responsible asking any questions; it was simply reviewing what it was that was said between the applicant and the delegate.
The questions, posed by the delegate, were open ended questions about belief and feelings.
The summaries used by the IAA, in paragraph 22 of their reasons, are accurate summaries of what it was that the applicant had said to the delegate.
The IAA concluded that what the applicant had said to the delegate, appeared to illustrate a knowledge of Christian concepts or core beliefs that was “very shallow”. The IAA also said about the applicant’s claim of being “cleansed of his sins” was something about which the applicant was unable to explain how such cleansing occurred or what was meant by the statement.
Criticisms of the IAA made by the Applicant
The applicant submitted that the reasoning of the IAA was unreasonable on its face and its foundations were unexplained. The applicant, through his Counsel, submitted that the IAA “imposed a doctrinal threshold that is unlikely to be met by many lifelong Christians”. (I note that Counsel for the applicant does not give any basis for making such a statement) The applicant said that the finding that the applicant’s religious knowledge was shallow because he could not articulate answers to such complex metaphysical questions was irrational.
The applicant submitted that his answer to the question of why he prayed (that it comforted him) was not inconsistent with a genuine belief in Christianity or the teachings of Christianity. This answer also did not disclose any probative basis to discount the answers as being “very shallow”. The applicant submits that the IAA has simply concluded that the answers are shallow and therefore has appointed itself as an arbiter of doctrine.
The reference to the applicant’s answers as to what the most important part of Christianity was to him (being love, fellowship and friendship) were questions directed to his personal experience of faith and could not be rationally used as the basis for conclusions about the applicant’s knowledge of Christian doctrine.
The applicant submitted that the finding that the applicant was not genuine in his religious conversion was not based on anything other than the IAA’s own evaluation of the applicant’s knowledge of Christian doctrine.
The applicant submitted that the IAA had fallen into the trap that the AAT had fallen into in the matter of SZLSP (Supra).
Discussion
In my view, the applicant has taken what was said in paragraph 22 of the reasons of the IAA, to be the only matters that the IAA has used to make its findings. This submission cannot be sustained. In its criticism of the IAA, the applicant has taken aspects of what the IAA has said in paragraph 22 and attempted to portray those aspects as being the total basis for the conclusion. This, also, cannot be sustained.
The applicant has also taken aspects of what was said, without putting those matters in the context of everything that was said, and then submitting that the aspect alone could not sustain a conclusion that the applicant’s knowledge was “very shallow”. This is not a proper approach.
It is clear from the manner in which paragraph 22 is phrased that the first sentence is detailing exactly what evidence the IAA is using to make its eventual conclusion; that is, all of the questions that the delegate asked the applicant “about his knowledge of Christianity and what Christianity meant to him”. I have reproduced those questions and answers earlier in these reasons.
It was open to the IAA to find, upon all of those answers, that the applicant’s knowledge of Christian concepts or core beliefs was very shallow. That does not mean that the IAA has resorted to the use of some form of external yardstick to compare and contrast what it is that the applicant has said.
Rather, it seems to me that the IAA has acted in accordance with what the Full Court in SBCC (Supra) has said was proper, and in accordance with the principles enunciated in MZZJO (Supra). In doing so, the IAA has not traversed the impermissible reasoning that was present in SZSLP (Supra).
What the IAA did, using the answers given by the applicant, was to conclude for itself that the applicant’s knowledge of Christian concepts or core beliefs was “very shallow”. The IAA did not identify that it used any standard by which to make the conclusion, because it did not use any such standard. It did not need to use such a standard because the answers, in and of themselves, did not display any depth.
What the IAA did was to act in accordance with what the Full Court has said in SBCC, SZLSP and MZZJO. The IAA has looked at the answers given by the applicant and concluded, after exploring what was said, and without any preconception as to what knowledge all believers will demonstrate, that the applicant’s lack of knowledge indicates that he is not a genuine adherent of Christianity. This conclusion was well and truly open to the IAA.
Conclusion
Because the IAA has followed the reasoning inherent in MZZJO and has not impermissibly assessed the answers of the applicant against some unidentified standard as to what Christianity involves, the IAA has not fallen into jurisdictional error.
This means that both grounds of the application must fail.
Orders
I dismiss the application filed on 19 September 2018 and amended on 25 July 2019 with costs fixed in the sum of $8,371.30.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 10 July 2024
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